Does a Will protect my child’s inheritance?
When you leave your wealth to another person on your death, you have no assurance that this person will abide by your wishes for how you would want them to distribute that wealth on their later death.
This can occur in any scenario, but a common example occurs where you leave all of your estate to your spouse, who has made a similar Will to yours, and which leaves everything to your mutual children when the survivor of you passes away. However, after your death, your spouse is free to change their Will and may well do so if they re-partner.
Securing future legacies by Agreement
As a parent, you want to see your wealth pass ultimately to your children when your spouse subsequently dies. We can discuss with you, either alone or together, the options you have to provide greater protection for your long-term inheritance to your ultimate beneficiaries. There are a number of strategies available to you. One option is to enter into an Inheritance Agreement with your spouse. This is sometimes known as making joint Wills, binding Wills, mutual Wills or a contract to make mutual Wills. This agreement needs to be made at the time of making your Wills. You can use a combination of strategies to achieve your purpose, too.
Seek professional advice
These strategies can be very effective in ensuring your legacy passes in accordance with your wishes. Care needs to be taken when drafting an inheritance agreement to consider all of the likely future scenarios and to ensure that it contains the right provisions to suit your situation.
These agreements involve complex legal principles and must be drafted by an estate planning lawyer. At our first consultation, we will go through the various options and the pros and cons of preparing an inheritance agreement, and provide you with our recommendations, along with a fixed fee quote.
Who should use an Inheritance Agreement?
An inheritance agreement is usually prepared at the time spouses write their Wills in which they provide for each other if they are alive, and then to their respective beneficiaries. This is therefore useful as it offers some peace of mind that your spouse will be legally obligated to follow the terms of this inheritance agreement after you have passed away, even if years pass between your death and then your spouse’s subsequent death. This type of agreement should not be entered into lightly as it does restrict the rights of the surviving spouse. However, this agreement does have plenty of advantages as well and are particularly common with estate planning for blended families and/or families with stepchildren or other eligible beneficiaries.
How do inheritance agreements work?
With an inheritance agreement you and your spouse agree upon an amount that the survivor of you will leave to your beneficiaries (whether that is children of your union, or various step-children). This legally-binding agreement places restrictions on the surviving spouse from fully changing their Will after the death of the first of them, and leaving it all to someone else (ie. Leaving it to a new partner or a carer, rather than to the children). There are also restrictions on the surviving spouse from making lifetime gifts to third parties instead of to the originally agreed beneficiaries.
Without an inheritance agreement, a surviving spouse could re-partner and change their Will to benefit this new spouse, or they could decide to benefit their own children and to disinherit their step-children. They could even benefit a carer and/or a charity if they wanted to. An inheritance agreement helps alleviate this risk by putting a legally binding mutual will contract in place between the spouses at the time of preparing their Wills which details the promises they are making to each other once one of them passes away.
Do you need a mutual Will if you already have a mirror Will?
A mirror Will is not the same thing as a mutual Will. Commonly, a mirror Will is just a colloquial term which refers to when spouses create identical Wills but there is no binding contract to ensure that it doesn’t substantially change after the death of the first of them. In this case, you and your spouse expect the other person to adhere to the details set out in this Will.
However, this isn’t always what happens. Sentiments may change over time. With a mirror Will, whoever is the surviving spouse can change their wishes and prepare a new Will. If you want both you and your spouse to be legally obligated to honour your original sentiments around your estate and to limit the possibility of this changing after one of you pass away, then talk to your estate planning lawyer about the option of creating an Inheritance Agreement.
At Estate First Lawyers, we offer Inheritance Agreement preparation services. As experienced estate planning and administration lawyers, we understand how important it is to ensure your Will and other documents are written in a way that aligns with your wishes and that your family will be cared for. Contact us today.
Talk to Us Today
Please complete the form below. Alternatively, you can call us on 1300 132 567.
Our unique ‘4 easy steps’ makes the process easy
Expert Estate Planning with Fixed Fees
Meet With Your Lawyer
Whether we meet virtually or face to face, we will listen, answer your questions, craft your estate plan and provide you with a fixed fee quote.
We’ll Keep You Updated
You will receive draft documents to review. You can discuss your plan with us at any time you want.
Final Document Meeting
We will go through all of your final documents together to ensure the plan is exactly what you want.
Frequently Asked Questions
Is there any restriction on me changing my Will at anytime?
The answer is ‘no’. You are free to make a Will at any time during your lifetime as long as you have the legal capacity to do so. You can also change your Will at anytime. This ability to make a new Will at any time is called ‘testamentary freedom’ and it is enshrined in English and Australian law.
Even if you have in place an agreement with your spouse not to make a different Will after one of you die, they can still make a new Will. However, if the agreement is valid and binding, the court will require the previous Will to be observed.
How do I protect my inheritance for my children?
You have several options to minimise the risk of an estate claim, which should all be thoroughly considered after obtaining specialised estate planning advice. This is particularly so because a number of these strategies require careful estate planning and you can use a combination of strategies to achieve your purpose. Some strategies might involve the transfer of assets while you are living, which may incur stamp duty, capital gains tax or other financial costs (such as affecting government pensions, etc.) and other risks. Giving a life interest only in a property in your Will is another strategy, but is restrictive and can have tax implications. Your circumstances, the pros and cons of each strategy and your wishes all need to be carefully weighed before you implement anything. Another possible strategy is to prepare an Inheritance Agreement together at the time of making your Wills. Click here to read more on strategies to reduce the risk of an estate claim.
How can I stop my spouse changing their Will after I die?
You can’t, because the law in all Australian states provides that each adult with capacity has the testamentary freedom to make and change a Will as many times as they like.
However, there are a number of strategies that you can put in place to restrict the effects of this right. One example is to enter into an Inheritance agreement with your spouse (sometimes called a contract to make mutual Wills, joint Wills or binding Wills) to agree to leave a certain amount to, for example, your children in the situation where your spouse passes away last in time. Other strategies include passing your wealth to your ultimate beneficiaries by way of superannuation, family trusts, or even transferring assets during your lifetime. Click here to read more about estate claim minimisation strategies. Each strategy and its pros and cons need to be weighed carefully by an experienced estate planning lawyer.
"We completed a complex Inheritance Agreement (Mutual Wills Deed), Enduring Powers of Attorney and Wills. Very satisfied with the outcome."
"Very engaging and knowledgeable, our questions were always answered with respect."